The Brunner Test: Can You Discharge Student Loans in Bankruptcy? (2026)

Updated on July 26, 2026

Most borrowers asking about the Brunner Test start in the same place: they cannot afford their payments, so the hardship seems self-evident. That is where the analysis begins, not where it ends. Courts do not ask whether repayment hurts. They ask narrower questions, and the answers have to be proven with evidence.

The Brunner Test is the standard most bankruptcy courts use to decide whether student loans impose an “undue hardship” that qualifies for discharge. It asks three things: whether repayment prevents a minimal standard of living, whether additional circumstances show that hardship will persist, and whether the borrower has acted in good faith.

What Is the Brunner Test for Undue Hardship?

The test comes from a 1987 case, Brunner v. New York State Higher Education Services Corp., which set out a three-part rule for when repaying student loans creates an undue hardship.

The first prong looks at the present. The borrower must show that, based on current income and expenses, repaying the loans would prevent maintaining a minimal standard of living for themselves and their dependents. Courts measure that against necessary expenses, not the lifestyle a borrower expected or once had.

The second prong looks forward, and asks for more than a forecast. It is not enough that the hardship is likely to continue. The borrower must show that additional circumstances exist indicating the situation will persist for a significant portion of the repayment period. That extra element — some identifiable condition beyond the current shortfall, such as a disability, age, or a limited earning history — is a separate hurdle, and it is where many cases are lost.

The third prong looks backward. The borrower must show good faith efforts to repay. Courts look at attempts to pay, contact with the loan holder, whether repayment options were explored.

All three prongs have to be satisfied, so failing any one ends the analysis — which is why the test is demanding even for borrowers in genuine financial distress. What the prongs require as a matter of law is a separate question from what it takes to prove them in a courtroom.

Does It Matter Which Circuit You're In?

Less than most borrowers expect. Not every circuit uses Brunner, but the alternative is not a lenient standard, and the gap is narrower than it sounds.

Brunner governs in most circuits. It controls in the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits — the Fourth and Sixth adopting it outright in 2005, the Tenth while cautioning against applying it harshly.

The Eighth Circuit uses the totality of the circumstances test. There are no fixed prongs. Courts weigh the borrower’s past, present, and reasonably reliable future financial resources, their reasonable and necessary living expenses, and any other relevant facts and circumstances. Because nothing is a threshold requirement, a weakness that would end a Brunner case can instead be one factor among many — which is the real structural difference between the two standards.

The First Circuit has not chosen. Its court of appeals has acknowledged the split without adopting either. In practice, its bankruptcy appellate panel and most bankruptcy courts there apply a totality-style analysis.

The practical difference is smaller than the doctrinal one. Brunner is somewhat harder to satisfy than the totality of the circumstances, but both are difficult, and borrowers win and lose under each. Whether private loans fare meaningfully better under totality is an open question — too few decided cases point in one direction to support a conclusion.

Courts applying Brunner have also moved away from its harshest phrasings, like “certainty of hopelessness,” and no circuit that uses Brunner has since moved off it. The standard has not changed; the interpretation has loosened at the edges.

What the Attestation Process Actually Changed

The most significant development was not a court decision.

The guidance and where it stands. The Department of Justice and the Department of Education issued joint guidance in November 2022 creating an attestation process for federal student loan discharge cases. A May 2025 revision aligned the form’s expense categories with the IRS Collection Financial Standards and refined the presumptions for borrowers near retirement age and those with a disability or chronic condition. The guidance page was updated again in March 2026, and the November 2022 framework remains in effect.

Federal cases rarely reach the test now. For federal loans held by the Department of Education, a contested Brunner analysis has become uncommon. When a borrower meets the attestation criteria, the government can consent to full or partial discharge instead of litigating.

But the standard itself never moved. The attestation process made discharge more attainable for some borrowers because it routes around the case law, not because the case law softened. Brunner still says what it said in 1987; what changed is how the government handles federal cases before a judge has to apply it.

Where the Brunner Test Still Decides Cases

The standard still controls wherever the attestation process does not reach.

Guaranty agencies may use the process, but are not required to. The Department of Education confirmed in 2023 that a holder of a federal family education loan or a Perkins loan — including a guaranty agency such as ECMC — may satisfy its obligations by using the same attestation process. It is permitted, not mandatory, and adoption has been uneven. An agency using a different method is still expected to ask about the borrower’s income and expenses, but the case is then evaluated under Brunner, or under the totality of the circumstances depending on the jurisdiction, and those cases can be difficult to get through.

Private loans sit outside the process entirely. A private loan meeting the tax-code definition of a qualified education loan carries the same undue hardship requirement with none of the streamlining. A private loan falling outside that definition is not covered by the discharge exception at all, and needs no undue hardship showing.

A judge can apply the test even when the government agrees. A bankruptcy court has an independent obligation to find undue hardship before discharging student loan debt, even when the creditor does not object — a principle the Supreme Court set out in 2010 and the Department of Justice’s own guidance acknowledges. In May 2025, a bankruptcy judge in the Western District of Texas denied a joint motion for consent judgment and held a borrower’s loans non-dischargeable under Brunner, finding the evidence insufficient even though the Department of Education had agreed to the discharge. An earlier decision from the same court in March 2025 reasoned the same way.

The underlying standard still matters in a case that looks like it will settle. The attestation form is a summary of a borrower’s circumstances, not the case itself. An assistant U.S. attorney who declines to consent is not the final word, and the evidence behind the form is what a court evaluates if the matter is decided rather than agreed.

FAQs

Is the Brunner Test impossible to meet?

No. Courts discharge student loans under Brunner. Outcomes depend heavily on the evidence presented and on how a particular judge weighs each prong, which can vary as much between individual judges as between circuits.

How do you pass the Brunner test?

By establishing all three prongs: that repayment would prevent a minimal standard of living for the borrower and their dependents based on current income and expenses, that additional circumstances indicate the hardship will persist through a significant part of the repayment period, and that the borrower has made good faith efforts to repay. Each prong is a factual showing supported by evidence. What it takes to prove those elements is a separate question from what the standard requires.

Does every court follow the Brunner Test?

No. Most circuits use it. The Eighth Circuit applies the totality of the circumstances instead, and the First Circuit has never formally adopted either standard, though courts there generally use a totality-style analysis.

Has the Brunner Test changed over time?

The prongs have not changed. Courts have moved away from harsh interpretations such as "certainty of hopelessness," and no circuit that applies Brunner has since adopted a different standard. What has loosened is the interpretation.

How does Brunner differ from the totality of the circumstances test?

Brunner uses three fixed prongs that all have to be met. Totality is open-ended, letting the court weigh a borrower's full financial picture and any other relevant circumstances without a rigid formula.

Does the attestation process change the Brunner Test?

No. The Department of Justice's process changes how the government resolves federal cases, not the standard judges apply. The form was revised in May 2025 and the guidance page updated in March 2026, but a bankruptcy court still has to make its own undue hardship finding — and courts have denied discharge under Brunner even where the Department of Education agreed to it.